Brown v. Board of Education as Social and Political History:

Legal historians are, of necessity, social historians. Accordingly, Michael J. Klarman's From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality is at once a legal and social history of the years before and after the historic 1954 decision in Brown v. Board of Education.

In light of the fiftieth anniversary of Brown, bookstores feature a plethora of books about the decision. Speeches, conferences, and celebrations in the last couple of months have heralded the decision. But

Klarman's scholarly text is unique in that it encompasses not only the decision itself, but also the events before and after.

In Klarman's view, the Brown justices agreed to overturn Plessy v. Ferguson only because at least half of the country was moving toward the acceptance of school integration--or at least toward the belief that "separate but equal" was inevitably an oxymoron.

Klarman, who holds professorships in both law and history at the University of Virginia, analyzes current events and high court decisions from Plessy to Brown and demonstrates how, even before Brown, many segments of society and commerce had begun to accept integration.

In support of his thesis, Klarman offers interesting discussions of cases involving issues as disparate as railroad car seating and law school admission policies. Klarman uses these examples, together, to illustrate a steady (though not necessarily linear--there were some setbacks along the way) move away from separateness in everyday life, and toward inclusiveness.

Klarman concludes that by the time that Thurgood Marshall stood in front of the Warren Court to argue that statutes segregating public schools should be invalidated, profound changes had already occurred in American race relations. Accordingly, the Court that decided Brown wasn't so much setting an entirely new standard, as recognizing one that already existed and was evolving, and enshrining that standard in the law.

The Justices' Dilemma: Reconciling Moral Imperative with Legal Precedent

In Klarman's view, Brown posed a dilemma for the justices--a conflict between law and politics, in which law came up short.

Klarman argues that traditional sources of constitutional interpretation--text, original intent, precedent, and custom--seemed to indicate that school segregation was permissible, as Plessy had originally held. Thus, while politics, in Klarman's view, was transforming to oppose school segregation, the law had not yet undergone the same transformation at the time Brown was decided.

For support, Klarman quotes a draft opinion written by Justice Robert Jackson. There, Jackson struggles to find a legal basis for outlawing school segregation. Jackson points out, for instance, that "[t]here is no explicit prohibition of segregated schools [in the Fourteenth Amendment] and it can only be supplied by interpretation." Jackson also found no evidence of congressional "intent" that the Fourteenth Amendment be interpreted to prohibit school segregation.

Yet most of the justices rightly found the practice of school segregation deeply abhorrent - so much so, Klarman argues, that in Brown, they relied not on the law, but rather on their personal values. Meanwhile, these values, Klarman asserts, were themselves heavily influenced by larger historical forces.

Still, some of the justices, including Jackson and Felix Frankfurter, were troubled by the machinations they had to go through to find a legal underpinning for what they felt morally compelled to do. They were blunt about their qualms: "Plessy is right" based on legal precedent, said Frankfurter flatly when the judges conferred on the case. Would that "our personal opinions that school segregation is morally, economically or politically indefensible made it legally so," wrote Jackson in a draft concurring opinion.

But after a personal and intellectual struggle, one that Klarman tells in great detail, the justices found their way individually and collectively to reach an historic decision that would change the face of society.

(Klarman makes clear that in his own mind, Brown was both morally and legally mandated, under the Fourteenth Amendment and prior Supreme Court precedent. But he also stresses that this is his view - not the Justices'.)

What Brown Wrought: The Events that Succeeded the Decision Itself

Klarman's treatise doesn't stop with its excellent constitutional and social analysis of Brown.

Among many other effects, Klarman asserts, Brown unfortunately served to ignite the smoldering flames of Jim Crow, and solidify opposition to segregation. Brown mobilized white, mostly southern, opposition to court-ordered integration.

The result was violent confrontations and radical southern politics, fueled by racial bigotry, theories of white "supremacy," and anti-federalism. Think of George Wallace - indeed, think of our current Attorney General John Ashcroft who, as Attorney General of Missouri, also fought the "meddling" of the federal government in their state's schools.

Fortunately, African-American and civil rights activists of all races did some mobilizing of their own. And ultimately, Southern violence against black children led to a secondary backlash against the opponents of Brown - a backlash that was mother to the landmark civil rights legislation of the 1960's.

The promise of Brown was realized in in new, amended, or repealed laws and case decisions relating to race and voting rights, jury representativeness, and racial disparity in the application of the death penalty, to name just a few important areas.

Extending His Thesis Beyond Brown: Klarman on the Court's Decisionmaking More Generally

Klarman believes that the court's racial jurisprudence from Plessy to Brown provides insight not only into the Court's other (and more modern) race cases, but also into judicial decision making (at least at the highest levels) as a whole.

Klarman comes up with an interesting rubric: When the legal sources are relatively determinate, he argues, the justices tend in most cases to adhere to them, unless their political preferences to the contrary are very strong. For instance, he contends that if the Fourteenth Amendment had specifically prohibited racial segregation, Plessy might have come out the other way.

When, however, judicial preferences are strong, the justices may reject even relatively determinate law, because they are unable to tolerate the result. So, in 1954, most of the justices considered racial segregation to be evil, and were determined to forbid it, regardless of whether conventional legal sources sanctioned segregation.

When the legal sources are indeterminate, however, all bets are off, for as Klarman is quick to note, constitutional interpretation is a matter of individual interpretation. (For instance, Justices Thomas and Scalia will defend to the death what they say is their own strict construction of the letter of the Constitution, while their opponents reject their reading as blatant misinterpretations.)

Finally, Klarman notes that the justices' moral views often coincide with dominant public opinion.

Does Klarman's Model Work for Cases on Abortion and the Death Penalty? Yes and No.

In pondering Klarman's thesis, I began to wonder how far his analysis might reach. Do reproductive rights and death penalty decisions fit the same model? To some extent, I think the answer is yes --

though the Supreme Court is far more divided than it was in the Brown days.

For instance, the majority of Americans support abortion as an option for woman, and the Court has continued to support that right as well. But the right is hanging on a slender thread of a weak majority. As Klarman predicts, the justices' views mirror the public's tenuous resolution of this difficult moral and legal issue.

In terms of death penalty jurisprudence, the situation is somewhat different. Polls still say that 60% of Americans favor the death penalty. Nevertheless, the trend is moving away from--not gravitating to--the ultimate punishment.

The court's recent decision outlawing execution of people with mental retardation, Atkins v. Virginia, is illustrative of public sentiment. Even most death penalty proponents don't believe in executing the mentally impaired (or the mentally ill--an issue the Court has not yet taken up).

On the other hand, the Supreme Court's school voucher decision in Zelman v. Simmons-Harris - which has been highly controversial -- seems to refute Klarman's basic premise. Most Americans actually do not support school vouchers as a way to "equalize" educational opportunity, yet the Court has allowed them nonetheless.

Some Current Justices Proudly Ignore Contemporary Morals, Despite Klarman's Prediction

The Court is different today, too. At least two current justices do not fit Klarman's model of being influenced by forces exterior to the text of the Constitution.

Justices Antonin Scalia and Clarence Thomas (and, sometimes, Chief Justice William Rehnquist) at least profess to be unmoved by current social or political trends. Indeed, they deride their brethren and sisters on the court who dare suggest that the court should consider such irrelevancies (Justice Scalia's polemical dissent in Lawrence v. Texas, the decision in which a majority of the Court struck down Texas's ban on homosexual sodomy, is a good ).

Strict "textualists" like Thomas and Scalia claim to care not a whit for what the public thinks or wants. Some would quarrel with their naÏve view of their own decision-making processes, but at least in terms of their self-description, they seem to rebut Klarman's view. It is hard to imagine these Justices agonizing, as did Jackson and Frankfurter, over the gap between the Constitution (and Supreme Court precedents interpreting it) and a morality that transcends the letter of the law.

A Different Take on Brown's Fiftieth Anniversary

Much of the talk on the fiftieth anniversary of Brown has focused on the inherent inequality that remains in today's public schools, though its character has changed somewhat .

Socioeconomic demographics still determine school quality - and therefore, inequality remains. Well-to-do neighborhoods have good schools because well-heeled taxpayers pick up the tab. Poor communities get what they pay for, so to speak.

And what they get, uniformly it seems, is inferior schools. The reality of "separate and unequal" is not today based directly on race, but on money. Unfortunately, wealth often correlates with race, with minorities still losing out. "De jure" segregation, mandated by law, has often been replaced by "de facto" segregation, imposed by race-correlated economic inequality and housing patterns.

One major debate - as Edward Lazarus has noted in a column for this site - is whether Brown was a true landmark, or whether it never lived up to its promise. Lazarus defends its landmark status, and in a way, so does Klarman - by explaining the broader historical significance of the decision, and the jurisprudential insights it affords.

Professor Klarman's explication of the Supreme Court's march toward racial equality as the rule of American law is supported by analysis of important cases and discussion of significant current events. The book is a fascinating read, its prose lucid and compelling.

It also gives the thoughtful reader pause: With the country so divided along partisan lines--and almost equally so--to which dominant voice is the Supreme Court is listening today?